Obama's State Secrets Overreach

Attorney General Eric Holder (AP file photo).

I'm off tomorrow. Blogging will resume Monday morning.

There are two things you really need to know about the "state secrets" privilege.

The first is that the government lied in the 1953 Supreme Court case that established the government's right not to disclose to the judicial branch information that would compromise national security. The widows of three civilian engineers who died in a military airplane crash sued the government for negligence. The government refused to turn over records, citing national security. But some 50 years later, when the records in question were made public, there were no national security secrets in them, just embarrassing information establishing the government's negligence. (More about the case here.)

The second thing is that the way the state secrets privilege has typically worked since then is that the government can refuse to publicly disclose a specific item of information if it explains why to the judge. The idea is not that government officials get to tell a judge to dismiss an entire case because they don't want to answer any questions at all.

But it is precisely such a sweeping assertion that the Justice Department -- the Obama Justice Department -- is making in three cases that relate to torture and warrantless wiretapping.

There is something utterly un-American about saying that the executive branch can simply tell the judicial branch to butt out of a matter for national security reasons -- and there's no recourse. And as for these cases, even if the government is worried about legitimate national security concerns -- rather than just afraid of embarrassment -- there is so much in the public domain already about the related issues that government officials should at least be able to talk about what they can't talk about.

People who put a lot of faith in President Obama's pledges of restoring transparency to the government are having a hard time rationalizing his Justice Department's actions on the three cases in question.

One common hope has been that Obama's Justice Department is still simply trying to figure out what to do. And Attorney General Eric Holder, in an interview with CBS News's Katie Couric that aired last night, said he has ordered a review of the state secrets doctrine. But asked if he felt the doctrine was abused by the Bush administration, he replied: "On the basis of the two, three cases that we've had to review so far - I think that the invocation of the doctrine was correct."

And as Charlie Savage reported in the New York Times in February, after the Obama administration's first invocation of the privilege, White House Counsel Greg Craig said, "Holder and others reviewed the case and 'came to the conclusion that it was justified and necessary for national security' to maintain their predecessor's stance."

What is motivating Obama's lawyers here? What exactly trumped his promises of transparency and the restoration of the rule of law? It's got to be something big. Is this about not wanting to give up executive power, now that they have it? Is it about protecting Bush-era secrets? Are they terrified of rebellion in the CIA or NSA? Are Justice Department lawyers still somehow under the influence of the old regime?

Holder at least indicated last night there will be some public explanations soon. He told Couric: "A report is in the process of being prepared. I'll expect I'll have it in the not too distant future. And my hope is to be able to share the results of that report with the American people. So they'll understand exactly - why we've had to use the state secret - state secrets doctrine in certain cases. And why we - decided not to use it in - in certain other cases."

Marc Ambinder blogs for the Atlantic: "Since January 20th, the Justice Department has invoked - or re-invoked - the privilege at least three times. In the case of an Oregon-based Islamic charity, the Al-Haramain Foundation, the administration argued that discovery in the case would necessitate the release of classified information that would gravely jeopardize national security, even though some classified documents were accidentally released to defense attorneys.

"In the case of a group of Guantanamo detainees who filed suit against a flight planning company involved in their renditions to other countries, the administration contended that further disclosure about the role that the company played in the renditions would harm national security.

"Most recently, the administration urged a judge to dismiss a lawsuit brought by five AT&T customers against the government and former Bush administration officials because a trial would require a broad disclosure of the government's current, highly-classified domestic surveillance activities.

"Critics contend that the Bush administration, and now the Obama administration, are wielding the privilege to dismiss entire cases based solely on the assertion by the executive branch that the information disclosed would damage national security, thereby turning what had been an evidentiary privilege into a justiciability privilege."

Salon blogger Glenn Greenwald has been avidly following these cases. His Monday post describes the controversial government actions in the Jewel case -- which, amazingly enough, go beyond the state secrets privilege and include a new "sovereign immunity" claim that would apparently prevent the government from ever being sued for spying that violates federal surveillance statutes in the absence of proof of "willful disclosure." In other words, if they keep it secret, no one can sue them for doing anything.

MSNBC's Keith Olbermann had as a guest last night Kevin Bankston, an EFF lawyer on the Jewel case. "The Obama campaign promised us change we could believe in, and a new era of transparency and accountability from government," he said. "But instead, this is looking like deja vu all over again, and the Obama administration is embracing the same aggressive secrecy arguments that the Bush administration did, and is going them one better by arguing this incredible immunity argument, by saying that despite the many laws that we have that are meant to restrict the government from wiretapping us or accessing our communications records without warrant, that the government -- the U.S. government is immune from any lawsuit for violating those statutes, and essentially eviscerating the privacy rights of millions of ordinary Americans."

Olbermann: "How much hope is there that the worry that this is excessive, that this is not the huge policy assertion that it would seem at first, second and third blush -- I mean, don't Justice Department attorneys of every generation have to come up with whatever arguments they can when the government gets sued? Don't the courts have the final say on this?"

Bankston: "Well, the decision to invoke the state secrets privilege was a decision of the administration. It did not have to do that. As you mentioned, Eric Holder is planning on withdrawing state secrets privilege assertions in another case. They could have done what we've advocated they do for several years and what the courts require them to do already in another case, which is submit their secret evidence through security procedures that are already laid down in federal law.

"As for the immunity argument, well... this argument is simple incredible, literally."

Liberal blogger BooMan weighs in: "It is extremely disappointing, it is unjustifiable, and it is dangerous. If the Obama administration's position prevails we will have fourth amendment rights but no means of protecting them.....

"This is wrong, and it is not consistent with his oath to uphold the Constitution. I will wait to see if opponents of this attempted power grab emerge on the right. They were mostly silent during the Bush years but we could use their help now because Obama is riding high and the left is distracted with economic matters."

Maybe Congress will act. There are bipartisan efforts in both the House and Senate to rein in the executive branch.

Louis Fisher, a specialist in constitutional law at the Library of Congress, has written extensively on the state secret privilege.

He e-mails me with these two thoughts:

"1. The administration defends the state secrets privilege on the ground that it would jeopardize national security if classified documents were made available to the public. No one argues for public disclosure of sensitive materials. The issue is whether federal judges should have access to those documents to be read in their chambers.

"2. If an administration is at liberty to invoke the state secrets privilege to prevent litigation from moving forward, thus eliminating independent judicial review, could not the administration use the privilege to conceal violations of statutes, treaties, and the Constitution? What check would exist for illegal actions by the executive branch?"

It is my hope (dream?) that Obama just isn't aware of what Holder and the Justice Department (evidently still in the hands of Bushies) is doing. So far, I don't see much difference between Holder and Gonzo and I agree that much of what is happening seems to be an effort to immunize the actions of the Department in the past, and thus to enable a continuation of the unconstitutional behavior that seems to be cemented into the upper reaches of the Department.

Perhaps, given the publicity (which hopefully will be continued) the politicos in the White House will notice that the Justice Department is still unAmerican.

It is my hope (dream?) that Obama just isn't aware of what Holder and the Justice Department (evidently still in the hands of Bushies) is doing. So far, I don't see much difference between Holder and Gonzo and I agree that much of what is happening seems to be an effort to immunize the actions of the Department in the past, and thus to enable a continuation of the unconstitutional behavior that seems to be cemented into the upper reaches of the Department.

Perhaps, given the publicity (which hopefully will be continued) the politicos in the White House will notice that the Justice Department is still unAmerican.

I share your policy concerns. At the same time I know that throughout the last 12 months I frequently thought Obama was making a mistake- failing to challenge something; underreacting. Invariably he was right and I was wrong. Seldom in my years of adult life had I accepted that I was wrong in matters political. With Obama it happened frequently. I now have incredible faith that Obama has vision and wisdom: strategic sense. I would give him plenty of deference (while continuing to point out the apparent problem).

Could the Justice Department be resisting the civil lawsuits because they think allowing the civil suits to procede might somehow interfere with filing criminal charges against illegal wiretap participants at some point in the future?

Keep after the Obama administration on this, Dan. We must keep our government transparent and accountable. I accept that some government affairs should never see the light of day but I don't accept broad, sweeping arguments with no capacity to vet their merit.

BTW, where are all your naysayers today? They seem to have a great need to opine about your lack of partiality but theirs is a thundering silence when you attack the Obama admin. Methinks the pot(s) doth call the kettle black.

hmm… A Republican Texas cowboy president and an Ivy League liberal president both agree that some elements of the NSA program can’t be safely released to the press. Did you ever consider the possibility that this might actually compromise national security?

Obama is smart enough to knows that if terrorist succeed in launching another attack within the U.S. the republicans will take him to the woodshed in 2012.

Here at The Coyote Flat Organic Hydroponic Fish Farm, Physics Lab and Domestic Strategy Discussion Center when we're not busy building our very own subatomic particlr collider we often sit around the shshi bar and fret over government infringement of our rights.

Amendment IV is very important to us. When we are told it is being violated for reasons of "national security" we must ask ourselves, "What nation?" If our leaders are not defending the Constitutions in both the letter and spirit of the law, then they are not doing the job the were sworn to do when we elected them in good faith.

Louis Fisher's second point is essential to idea that we must hold our leaders accountable for the use of the "state secrets" privilege. Judicial review is necessary to maintain the fragile balance of power in Washington.

I always thought that the "State Secrets" claim was a bunch of feces. It just covers somebody's anus. Exactly who in the Obama Administration or any Bush holdovers in the Justice Department are making these decisions? They should be gotten rid of. But then Obama never explained exactly what he meant by "CHANGE"!

dcn1:
I don't think anyone advocates releasing secrets to the press/public. The issue is whether someone other than the executive gets to review the material to validate that it is indeed secret and not merely inconvenient.

Clearly candidate Barack Obama promised changes and reforms that are not being carried out. His administration's lame use of "state secrets" to help cover-up Bush administration human rights abuses, and refusal to investiage, prosecute violations of law by Bush administration officials, is a major scandal. This is by far the most disappointing and reactionary policies of the Obama administration so far. With this policy and the decision to send more troops to the quagmire in Afghanistan, some days I wonder if Cheney is the real president again.

Recent presidents have abused the "state secrets" rationale to create an imperial presidency, with the executive branch looming far above the subservient legislative and judicial branches. Bush II and Nixon were probably the worst offenders in raising the executive branch above the other two branches, subverting the Constitution on a massive scale.

I thought Barack Obama was supposed to know a lot about the Constitution. Seems as if either this is not true or else like Bush II and Nixon, he intends to assert the executive branch as dominant, as well as allowing human rights abuses, violations in law during the Bush presidency to go unpunished.

I wonder what grade most Constitutional and civil liberties scholars would give president Obama for these policies. I think a D- would be highly generous.

What it really comes down to is that it is my money that is paying the salaries of the president and the attorney general and I WANT THAT INFORMATION RELEASED. Whether or not compromises national security which is a whole load of garbage anyway. I want this country back to the rule of law - INTERNATIONAL LAW - no torture and no secrets. I am disgusted with the lot of them. Until all these secrets are laid bare the flag of this country, the reputation of this country, is DIRT.

Hi-
Rather than make a federal case out of this (sic), it may be useful to consider that this may be simply a way to placate the DOJ bureaucracy, which the Administration is going to need to sort out the "legacy" issues. Holder had been in Justice and was involved in some of the decisions that led to this mess.
Because of these issues, it would probably be simplest to task Special Prosecutors for Torture and Privacy issues. This could easily be done by Congress, hopefully with some safeguards to prevent a new Ken Starr. This is consistent with Congressional oversight powers and judicial review. It takes national security out of the mix, since the Prosecutors could be vetted, and also pursue the penumbra of issues that surround the presumed misuse of power (such as who authorized the actual processes used, whether they followed the law, etc.). The people who are attacking our privacy may be doing so in the only way they know to keep us safe. A special Prosecutor will help them re-establish the limits on this activity that wars always stress.

Think Folks! If Obama unilaterally voids this claim of State Secrets Privlege the next republican administration (not in my lifetime I hope) can just start claiming it again. If they force the courts to deal with the problem it can be definitively buried for a very long time.

MSNBC's Keith Olbermann had as a guest last night Kevin Bankston, an EFF lawyer on the Jewel case. "The Obama campaign promised us change we could believe in, and a new era of transparency and accountability from government," he said. "But instead, this is looking like deja vu all over again, and the Obama administration is embracing the same aggressive secrecy arguments that the Bush administration did, and is going them one better by arguing this incredible immunity argument."
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Hey quit picking on Obama.. on this issue the guy is doing a damn good job... Obermann is a A$$!!!

Could the Justice Department be resisting the civil lawsuits because they think allowing the civil suits to procede might somehow interfere with filing criminal charges against illegal wiretap participants at some point in the future?
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Ummm.. NO!!!!

Last summer, candidate Obama reneged on his pledge to filibuster and vote against Bush's telecom immunity act. The assertions of "state secret" and "sovereign immunity" defenses in these three cases is even more repugnant. Don't blame the A.G. That's an old Repub tactic. The President is responsible. I was dissapointed last summer, but my electoral choice was limited. I forgave the Senator and happily voted for him. Unless I learn of a damn good reason for extending these Bush legal doctrines, as of today, I'm officially off the "Obama Express."

Where are the posters who would usually accuse Mr. Froomkin of "Liberal Bias"? "Fair and Balanced" really does mean something other than a media "catch phase" to some journalists. One can imagine the "Neoconservative" outrage toward the content of this column were Mr. Bush still in office.

The current attitude at the Justice Department is both disturbing and discouraging. One can hope that the Obama administration has good reasons for the continuation of this questionable legal status quo, and that this is only temporary. If it is not, the President owes the American public an explanation.

The idea that there might be a "rebellion" among CIA employees...mentioned in this post by Dan and alluded to during his web "chat" the other day...is utterly ridiculous, in my view. Even hypothetically, it's pretty hard to imagine what form a "rebellion" would/could take or even who could possibly organize...whatever. The agency is not a completely independent entity acting solely on its own; everyone in the agency is a US Government employee and follows whatever policies the incumbent administration sets. The director/CIA (picked by Obama) could easily remove any agency employees who refused to do their jobs according to administration policy...and who wants to be thrown out on the street?

The Obama administration's approach so far on these secrecy issues has been VERY disappointing -- who could possibly have imagined that ANYONE with any intelligence (especially Obama...given his campaign promises) would continue to follow Bush's discredited policies. I hope this changes soon...but it's not looking very good.

One can only hope that the American public gets a full accounting of the actions of the Bush administration, supposedly done in our name. Bush did, in a way, "keep us safe." But, my question: is that all there is to American democracy? What American values, traditions, or legal concepts does that relate to? Certainly our "founding fathers" never proclaimed "just keep us safe" no matter what the cost to our rights. Every undemocratic leader in the world, I'm sure, also thinks that they're "keeping the people safe." According to Bush/Cheney/etc, any actions that could be self-proclaimed as "keeping us safe" were OK. Violating our own Constitution, lying to the American people, breaking international laws...personally, I don't think it was worth it.

I, for one, am not willing to give up my constitutional rights for increased safety. That is why I fought so hard to vote out Bush & company. If Obama's administration continues down this road to fascism, I will be fighting against him in 2012.

I always wondered if Obama will let go of the unconstitutionally grabbed "executive powers." Now I have the answer. Greed and power is usually the downfall of even well-meaning leaders.

I agree with billyvw - I will work just as hard to defeat an Obama candidacy in 2012 if he doesn't live up to the actual role of the Office of the President. It is time he started treating the public as adults - not blind children.

What solsticebelle said, in all caps. Congress will not do anything about this directly. But, as Pelosi said, the "Patriot" act comes up for review at the end of the year. Now the Republicans will never cast a vote for the fourth amendment. Neither will the Conservadems. So there aren't enough votes to PASS anything, but if the "Patriot" expires maybe the Obama administration will be no worse on the fourth amendment than the Bush administration. That is, we will be better off, but not enough to notice. In any case, the evidence is that NSA has been illegally wiretapping Americans for the last 8 years and that program is continuing under the Obama administration. Sometimes it was more illegal than other times, but there is no evidence that it had ever been completely legal. Poor America - we will have to wait at least another eight years for a President who follows the Constitution.

What kennyboy @5:13 said is very important here. These cases must be allowed to progress through the system for review by the courts. And they will; it'll just take some time and will be painful on the way.

Obama fully understands the constitutional process here and that's what he's protecting, however ugly it may be at times.

Politically it would be foolish for this President to usurp the law as it stands now, all in an effort to appease the constituency. (He already won his election, remember?)

And don't forget that the legislative branch certainly has the power to change the law here, too. However, I doubt anyone up there has the cajones to do so in light of 2010 fast approaching.

OMG President Obama might reach the 100 day mark without completely undoing all the damage the Bush Administration put together in the last eight years! While I appreciate that Dan is bringing this up, it's still worth pointing out that

A: It's still very early in Obama's term.
B: The Economic meltdown has overshadowed and taken precedence over just about everything else.
C: President Bush took office with the idea that everything President Clinton did was wrong. Al Queda and terrorism were a 'Clinton thing' and were largely ignored until 9/11/01 (this is not intended as a bogeyman to say he shouldn't reverse course just to point out that reversing course with out considering why can be disastrous)

If the Obama administration is still hiding behind the State Secrets Act and 'privilege' a year from now, without providing a solid reason to do so then by all means please pull out the torches and pitchforks. But for the time being please remember that candidate Obama presented himself as someone who would think first and consider the unintended consequences before acting, and that is change I can believe in.

Great post and interesting comments. Behind STATE SECRETS theory is the premise that documents have been appropriately classified not just classifiable. Unfortunately, when reviewed in camera by sitting federal judges much that was classified was erroneously classified. Remember the theory of STATE SECRETS is that direct endangerment of the STATE could result. Domestic surveillance can NEVER rise to the level of endangering the STATE. What it does do is endanger individual liberties. The doctrine as developed and articulate by the federal judiciary is founded on mistake and ignorance when it comes to domestic surveillance. Listen to Louis Fisher!

This is extraordinarily disappointing.
I suggest that the "Obama army" of volunteers send letters to the White House asking why this policy is being put into place and what justifies it. If the WH receives enough letters--be they paper or email--I suspect the President will realize he is NOT pleasing the many who helped get him into office.

Worse, he may realize that he is not living up to our obligations under national and international law.

This is something I could not rationalize and am quite disappointed in the Administration. It isn't something that makes me proud of my choice last November.

Oh, and drewbitt - as a member of that Obama army of volunteers - I can assure you that we ARE doing that. Many of us are beside ourselves that "our" president is doing this. Many others believe that Obama must do this or create such a controversy that he'll be stalled on his positive agenda of reforming healthcare, rebuilding a sustainable economy, and so on. I agree with both camps, but it's a Devil's bargain.

The Justice Dept and the Treasury Dept. are the two weakest aspects of Obama's "Change we can Believe In" campaign. I hope that the Justice Dept. will come clean on the State Secrets privilege issue, but I think that with Summers and Geithner the Treasury Dept. is already too far up the wrong tree, bailing out the financial sector at the expense of the taxpayers and future generations.

"I believe that those who insist that on matters such as FISA [Obama] will be different as president than he was as a senator are just kidding themselves. In fact, I suspect that the reason he flip-flopped on FISA is that he started contemplating having those powers himself."

I don't get many chances to do it, so I'm going to do it now: I told you so.

You see, Obama is raising the state secrets defense in the hope that he will lose the argument, in the hope that the court will rule against him, so that the court will establish a precedent that the government can't use the state secrets defense.

You see, when Bush argued this, Bush wanted to win the argument; but when Obama argues it, Obama wants to lose the argument.